751 S.W.2d 917 | Tex. App. | 1988
Richard Dale Clark waived his right to a
Following the bench trial Clark was convicted, and the court assessed his punishment at three years’ confinement.
Clark urges three points of error contending (1) that the court erred in failing to acquit him because the evidence shows that the second of two prior convictions alleged in the indictment to elevate the primary offense (a Class “C” misdemeanor) to a third degree felony was not final at the time of the commission of the first prior conviction alleged in the indictment, and (2) that such variance requires reversal and acquittal. We affirm the judgment.
Under the terms of the indictment Clark was charged with committing a Class “C” misdemeanor theft.
[Clark] was duly ... convicted of [felony theft] on the 9th day of April 1982 in ... Hale County, Texas, in cause number A-7532 ... and the judgment of conviction therein became final prior to the commission of the [primary offense] ...; and that before the commission of the [Hale County] offense, [Clark] was ... convicted of [felony theft] on the 22nd day of March, 1982, in ... Potter County, Texas, in cause number 20,605-A ... and the judgment of conviction therein became final prior to the commission of the [primary offense]. (Emphasis ours.)
In summary, it is alleged in the indictment that Clark was finally convicted of felony theft in Hale County on April 9, 1982, before his commission of the primary offense on February 22, 1987, and that before the commission of the Hale County offense, Clark had been finally convicted of felony theft in Potter County on March 22, 1982.
The State’s evidence establishes
Clark in his argument points out that the revocation of his probation in Hale County was partly based on the commission of the theft offense in Potter County. He contends that the State’s failure to prove that his final conviction of the Potter County offense occurred before he committed the Hale Counly offense, constitutes a fatal variance requiring reversal. Clark’s argument is premised on his proposition that section 31.03 is a “ ‘special enhancement’ statute.” That contention has been wisely rejected by the Court of Criminal Appeals.
Section 31.03 provides that “an offense [theft] under this section is: .. .(4) a felony of the third degree if: ... (c) the value of the property stolen is less than $750 and the defendant has been previously convicted two or more times of any grade of theft; ....”
These provisions are clear and unambiguous, and require the State to allege and prove a primary misdemeanor theft offense and two or more theft convictions “of any grade,” which became final before the commission of the primary offense. In
The judgment is affirmed.
. The waiver was in writing and the State's attorney filed his written approval and consent thereto and the trial judge likewise consented in writing, all in compliance with Tex.Code Crim. ProcAnn. art 1.13 (Vernon 1977).
. Pursuant to Tex-Penal Code Ann. 31.-03(e)(4)(C) (Vernon’s Supp.1988) (hereinafter referred to as "section 31.03”).
. Hereafter referred to as the "primary offense.”
. State’s exhibit no. 3 (pen pack).
. Gant v. State, 606 S.W.2d 867, 871, 871 n. 9 (Tex.Cr.App.1980).
. Cf., Campise v. State, 745 S.W.2d 534 (Tex. App. [1st Dist.] Houston 1988, no pet.).